A Queensland woman must wait for a Supreme Court judge to decide if she is legally allowed to use her boyfriend’s sperm to have children.
In a landmark case for the state, Ayla Cresswell successfully applied to have Joshua Davies’ reproductive tissue removed before his sudden death in August 2016.
The 24-year-old has been paying for his sperm to be kept in storage at a medical clinic ever since.
Ayla Cresswell (pictured: right) successfully applied to have Joshua Davies’ (left) reproductive tissue removed before his sudden death in August 2016.
She appeared in the Brisbane Supreme Court on Friday for a hearing to determine if she could now use it to have children.
Kathryn McMillan QC said although her client was young, she and her boyfriend had spoken about settling down and having children before ‘tragedy struck’.
The court heard Ms Cresswell had the full support of her partner’s family and her own.
Ms McMillan argued that although any children she had with Mr Davies’ sperm would grow up not knowing their dad, ‘they nonetheless would be able to have the benefit of his family’s input in their life’.
‘This is not a pure grief reaction,’ she said, referring to the fact her client had received counselling and still wanted to have his children one year on.
Ms McMillan also referenced the fact no one else, including the state, had any interest in the sperm.
The 24-year-old (right) has been paying for his sperm to be kept in storage at a medical clinic ever since
But Soraya Ryan QC, representing Queensland’s attorney-general, raised concerns about the court’s jurisdiction in the matter and the lack of relevant legislation.
The court heard there were few other similar cases in Australia, but Ms Ryan said in one instance the judiciary controlled how the sperm was used.
Ms Ryan said it would enable the rights of any children and the ‘autonomy of the deceased’ to be respected.
The attorney-general’s legal counsel said there were ‘very few’ jurisdictions in Europe that allowed posthumous retrieval, while the Victorian Law Reform Commission required written consent.
She appeared in the Brisbane Supreme Court on Friday for a hearing to determine if she could now use it to have children
Justice Susan Brown said she appreciated the ‘anxiousness’ of Ms Cresswell and the two families to have the matter resolved, but she had to take some time to consider her decision.
‘This is not something that is really canvassed within our legal system to date,’ she said.
‘I’m just going to have to ask everyone to have a bit more patience because it is an area which is very novel.’
Justice Brown said she needed to consider if the original order allowing the sperm to be extracted was lawful and if the court had jurisdiction to make a decision.
She said she also needed to decide if the sperm was considered property, who was entitled to it.
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